WATCH THAT MOUTH

How Donald Trump Could Go to Jail for Inciting a Riot

The candidate is getting close to breaking state laws, and even a federal one, for encouraging supporters to commit a violent crime. But that in and of itself is not enough to land him behind bars. Here’s what it would take.

Brendan Smialowski/AFP/Getty

Donald Trump would not have pledged to pay his supporters’ legal bills if he did not think they risked arrest by assaulting protestors at his rallies.

And he would not think they risked arrest if he did not figure they would be breaking the law.

And that means he was effectively encouraging them to commit a violent crime.

The question is whether Trump was breaking the law in making such a pledge and by explicitly urging his followers to assault protesters at various rallies.

On Sunday, Trump confirmed that he was “looking into” paying the legal bills of 78-year-old John McGraw, who had been arrested for sucker punching a protester at a rally in Fayetteville, Cumberland County, North Carolina.

On Monday, a North Carolina radio station tweeted that “Cumberland authorities consider charging Trump with inciting violence at Fayetteville rally.”

Shortly afterward, The Daily Beast spoke by telephone with Sgt. Sean Swain, the spokesman for the Cumberland County Sheriff’s Office. Swain said that the tweet had arisen from an interview with local WRAL radio.

Swain suggested that his boss, Sheriff Earl “Moose” Butler, had been speaking in the past tense, saying that the office had looked into the possibility of charging Trump.

“It’s just something that we’ve looked at,” Swain said.

Swain went on to report that the sheriff had examined the applicable North Carolina law and had concluded that Trump’s conduct did not warrant an arrest.

“It didn’t fit the statute,” Swain said, “If it fit, we’d have already charged [Trump], as we did Mr. McGraw… We’d have made the charges by now. We would have done it.”

Not long after that, The Daily Beast tweeted a summary of Swain’s clarification.

Not long after that, the sheriff’s office issued a contradictory written statement:

“Our investigation is not complete as to the incidents of Wednesday, March 10, 2016. We are continuing to look at the totality of these circumstances, including any additional charges against Mr. McGraw, including the potential of whether there was conduct on the part of Mr. Trump or the Trump campaign which rose to inciting a riot, and including the actions or inaction of our deputies. We are not in a position to comment further at this time.”

Not long after that, the sheriff’s office issued a third statement, contradicting the second and confirming the first:

“With respect to the potential of lodging charges of inciting to riot against Donald J. Trump, or the Trump Committee, we have reviewed the evidence accumulated, and consulted with the detectives involved. The Sheriff's Office legal counsel advised, and the Sheriff concurred, that the evidence does not meet the requisites of the law as established under the relevant North Carolina statute and case law to support a conviction of the crime of inciting a riot.”

Maybe in briefly suggesting it was indeed still investigating the possibility of charging Trump with inciting to riot, the sheriff was seeking to spare the local radio station some embarrassment.

Or perhaps the sheriff was just trying to be double sure.

After all, reason suggests that the law would surely offer some criminal sanction against a presidential candidate who urges his supporters to break the law and pledges to pay for their defense if they are arrested for doing so.

But in this instance, in these specific circumstances, reason and reality diverge.

The North Carolina statute in question is Section 14 288.2 (d) of the state penal code:

“Any person who willfully incites or urges another to engage in a riot, so that as a result of such inciting or urging a riot occurs or a clear and present danger of a riot is created, is guilty of a Class 1 misdemeanor.”

The statue defines a riot as “a public disturbance involving an assemblage of three or more persons which by disorderly and violent conduct, or the imminent threat of disorderly and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.”

The Fayetteville incident would appear to be two perpetrators short of a riot. And any inciting by Trump occurred at earlier rallies in different parts of the country.

All state statutes—along with federal law—are subject to the Supreme Court’s ruling in Brandenburg v. Ohio. The 1969 decision involved a KKK rally and found “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The key word is “imminent.”

Back in November, Trump supporters at a rally in Alabama beat and kicked a protester. Trump immediately offered his approval, suggesting, “Maybe he should have been roughed up.”

Had he expressed that sentiment before rather than after the beating and kicking, had he suggested, “Maybe he should be roughed up,” Trump might have been in violation of the Alabama penal code, Section 13A-11-4 (a):

“A person commits the crime of inciting to riot if he commands, solicits, incites or urges another person to engage in tumultuous and violent conduct of a kind likely to cause or create a grave risk of public terror or alarm.”

Since he flew in on his jet from another state, Trump might also have been violating federal law 18 U.S. Code, Section 2101, which states: “Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent to incite a riot; or to organize, promote, encourage, participate in, or carry on a riot; or to commit any act of violence in furtherance of a riot; or to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot… shall be fined under this title, or imprisoned not more than five years, or both.”

But none of that applies if there is not an intent to incite imminent law breaking.

Had Trump talked about punching protesters in the nose at the Fayetteville rally shortly before McGovern did just that and had at least two more supporters turned assaultive, Sheriff Butler could very well have put handcuffs on the leading candidate for the Republican nomination.

Butler rightly said of the assault: “No one should be subjected to such a cowardly, unprovoked act as that committed by McGraw. Regardless of political affiliation, speech, race, national origin, color, gender, bad reputation, prior acts, or political demonstration, no other citizen has the right to assault another person or to act in such a way as this defendant did.”

The sheriff had not hesitated to arrest McGraw for assault. The sheriff had arrested McGraw again after a videotape showed him saying he had enjoyed punching “that loudmouth,” saying the man had not been “acting like an American” and “next time we see him, we may have to kill him.”

The second charge against McGraw was Communicating Threats, as defined by Section 14-277.1 (a) of the state penal code, in which the accused “willfully threatens to physically injure the person.”

Trump would seem to be skating at the edge of both inciting a riot and communicating threats. He could find himself in trouble if he spouts off again about a protester being removed on a stretcher and folks at that particular rally immediately act on his words.

On Thursday, the rapper Tyler the Creator repeatedly urged an overflow crowd at SXSW in Austin, Texas, to rush the security barricades, with an imminent result. He was subsequently charged with inciting a riot.

The arresting officer noted in an affidavit that a bartender “was punched by an unknown male to the left side of his face which caused him pain.”

One difference with Donald the Inflator would be that he has encouraged others to break the law even as he is being guarded by cops and Secret Service agents who are sworn to uphold it.